Citation Nr: 1044560
Decision Date: 11/29/10 Archive Date: 12/03/10
DOCKET NO. 05-21 747 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles,
California
THE ISSUE
Entitlement to service connection for posttraumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The Veteran served on active duty from July 1955 to May 1957.
This matter is before the Board of Veterans' Appeals (Board) on
appeal from a February 2004 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Los Angeles,
California.
The Veteran's claim was remanded by the Board in October 2008.
FINDING OF FACT
The Veteran's alleged stressors have not been corroborated, and
the evidence shows that the Veteran's claimed stressor of sniper
fire did not occur.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1131, 1154(b), (West 2002); 38 C.F.R. §§
3.303, 3.304(f) (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs has a
duty to notify and assist claimants in substantiating a claim for
VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126
(West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2010).
In April 2003 and March 2006, the RO sent letters to the Veteran
which advised him of the VCAA, including the types of evidence
and/or information necessary to substantiate his claim and the
relative duties upon himself and VA in developing his claim.
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The March 2006
letter advised him of the bases for assigning ratings and
effective dates if service connection is granted. See Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
As to the duty to assist, VA has associated with the claims
folder the Veteran's VA treatment records and private treatment
records. The Veteran has been provided a hearing before a
Veterans Law Judge. VA attempts to obtain the Veteran's service
treatment records and service personnel records were unsuccessful
and the Veteran was informed that these records cannot be
obtained. The Veteran has not asserted, and the record does not
indicate, that there are any additional obtainable pertinent
records. The Veteran has been accorded ample opportunity to
present evidence and argument in support of the appeal.
In sum, the Board is satisfied that the originating agency
properly processed the Veteran's claim after providing the
required notice and that any procedural errors in the development
and consideration of the claim by the originating agency were
insignificant and non-prejudicial to the Veteran. See Bernard v.
Brown, 4 Vet. App. 384 (1993).
Applicable law provides that service connection will be granted
if it is shown that the Veteran suffers from disability resulting
from an injury suffered or disease contracted in line of duty, or
for aggravation of a preexisting injury suffered or disease
contracted in line of duty, in active military service. 38
U.S.C.A. § 1131; 38 C.F.R. § 3.303.
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If there
is no showing of a resulting chronic condition during service,
then a showing of continuity of symptomatology after service is
required to support a finding of chronicity. 38 C.F.R. §
3.303(b).
Service connection may also be granted for any disease diagnosed
after discharge, when all the evidence, including that pertinent
to service, establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
Establishment of service connection for PTSD requires (1) medical
evidence diagnosing PTSD; (2) credible supporting evidence that
the claimed in-service stressor actually occurred; and (3)
medical evidence of a link between current symptomatology and the
claimed in-service stressor. 38 C.F.R. § 3.304(f). See also
Cohen v. Brown, 10 Vet. App. 128 (1997).
If the evidence establishes that the Veteran engaged in combat
with the enemy and the claimed stressor is related to that
combat, in the absence of clear and convincing evidence to the
contrary, and provided that the claimed stressor is consistent
with the circumstances, conditions, or hardships of the Veteran's
service, the Veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 C.F.R. §
3.304(f)(1). See also 38 U.S.C.A. § 1154(b).
As it has been shown that the Veteran did not engage in combat
with the enemy, his lay testimony alone is not enough to
establish the occurrence of the alleged stressor. See Moreau v.
Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet.
App. 163, 166 (1996). To that end, the record must contain
service records or other corroborative evidence that
substantiates or verifies the Veteran's testimony or statements
as to the occurrence of the claimed stressor. See West (Carlton)
v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet.
App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD
does not suffice to verify the occurrence of the claimed in-
service stressors. See Moreau, 9 Vet. App. at 395-96; Cohen, 10
Vet. App. at 142.
Subsequent to the last adjudication of this claim, the
regulations concerning PTSD were amended. Effective July 13,
2010, if a stressor claimed by a veteran is related to that
veteran's fear of hostile military or terrorist activity and a VA
psychiatrist or psychologist, or a psychiatrist or psychologist
with whom VA has contracted, confirms that the claimed stressor
is adequate to support a diagnosis of PTSD and that a veteran's
symptoms are related to the claimed stressor, in the absence of
clear and convincing evidence to the contrary, and provided the
claimed stressor is consistent with the places, types, and
circumstances of that veteran's service, a veteran's lay
testimony alone may establish the occurrence of the claimed in-
service stressor. "[F]ear of hostile military or terrorist
activity" means that a veteran experienced, witnessed, or was
confronted with an event or circumstance that involved actual or
threatened death or serious injury, or a threat to the physical
integrity of the veteran or others, such as from an actual or
potential improvised explosive device; vehicle-imbedded explosive
device; incoming artillery, rocket, or mortar fire; grenade;
small arms fire, including suspected sniper fire; or attack upon
friendly military aircraft, and the veteran's response to the
event or circumstance involved a psychological or psycho-
physiological state of fear, helplessness, or horror. See 75
Fed. Reg. 39843 (Jul. 13, 2010) (to be codified at 38 C.F.R.
§ 3.304(f)(3).
The record does reveal that the Veteran has received diagnoses of
PTSD from VA physicians. In December 2002 the Veteran received a
diagnosis of PTSD based on his report that he was shot at while
in Korea. In January 2003 he received a diagnosis of PTSD based
on his report that he had been in combat during the Korean War.
The Veteran asserted in a March 2003 statement that he had PTSD
due to racial discrimination, due to seeing wharf rats eating a
dead soldier, and due to other soldiers getting shot all around
him.
In April 2003, the Veteran submitted a PTSD questionnaire. He
reported the events that caused him to develop PTSD were his
fighting with his platoon sergeant after he called him racial
epithets, and other service men being killed. He reported that
the servicemen were killed in 1956, but he could not remember the
names of any of these servicemen.
The Veteran testified in September 2008 that his PTSD was caused
by the stress of being put on guard duty for 24 hours straight.
The Veteran testified that he did not receive a combat citation
and that he did not receive fire from the enemy.
The Board notes that the Veteran's Form DD-214 does not indicate
that the Veteran served in combat. Furthermore, other statements
made by the Veteran, including at his testimony at his September
2008 hearing indicate that the Veteran did not serve in combat.
As such, the Board must consider whether the Veteran's diagnosis
of PTSD is based upon a verified in-service stressor.
The Board notes that United States Joint Services Records
Research Center (JSRRC) could not corroborate any of the
Veteran's claimed stressors. In particular, the Board notes that
the Veteran's assertions that he was exposed to sniper fire while
on guard duty and that fellow guards were killed by snipers when
he was in Korea could not be verified. In fact the JSRRC
responded to the verification request noting that there were no
documented sniper incidents in Korea in 1956. A Morning Report
search also failed to corroborate the Veteran's assertions.
In this case the record does not corroborate the Veteran's
claimed stressors through credible supporting evidence. The
Board notes that when the Veteran testified in September 2008, he
did not make any claims of having been exposed to sniper fire or
of other servicemen being killed by sniper fire. The evidence
does not reveal supporting lay or buddy statements, and the
Veteran has not provided sufficient credible specific evidence,
such as names and more exact dates, to corroborate or verify his
alleged stressors. Additionally the attempts to corroborate his
stressors have provided evidence that sniper fire did not occur
when he claims that such happened.
In short, the sole supporting evidence that an alleged stressful
event occurred is the Veteran's own statements regarding his
stressors which have been shown to be false. In this case the
Veteran did not serve in combat and his lay testimony regarding
in-service stressors is insufficient to establish the occurrence
of the stressor. Further, the Board finds that the Veteran's
allegations regarding his stressors are not credible. Over the
years, the claimed stressors have changed, and one has been
verified not to have occurred. Accordingly, service connection
for PTSD is not warranted.
ORDER
Service connection for PTSD is denied.
____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs